Best if printed in landscape.
Dakota Surface Water Drainage Law
issues usually fall into two broad categories of "wanting to acquire water"
or "wanting to dispose of water." This page focuses on the question
of disposing of surface water from rain and snowmelt; restated, this page
addresses drainage. The discussion focuses on North Dakota law;
federal drainage law is mentioned, but not fully discussed on this
page. This page addresses just one part of the complex array of
page is for educational purposes only. Visitors are urged to seek
competent professional advice for answers to their specific questions.
drainage regulated in North Dakota?
For example, a permit from the state is needed in some situations before
landowners can drain their land.
is a state drainage permit needed in North Dakota?
permit is needed before a landowner can drain a watershed of more than
person, before draining a pond, slough, lake, or sheetwater, or any
series thereof, which has a watershed area comprising eighty acres [32.37
hectares] or more, shall first secure a permit to do so." North
Dakota Century Code (N.D.C.C.) 61-32-03.
example, a permit is needed to drain a half-acre wetland in a 100-acre
watershed. The criterion for determining whether a permit is required
is not the size of the wetland or pond, but the size of the watershed
in which the wetland is located.
permit is required whether the drainage involves constructing a ditch,
pumping to remove the water, extending or modifying an existing drain,
or filling a wetland. North
Dakota Administrative Code (N.D.A.C.) § 89-02-01-03.
A tiling drainage system also requires a permit. North Dakota Attorney General Letter Opinion, 2008-L-14.
means the area which drains into a pond, slough, lake, or sheetwater,
or any series thereof. Also see N.D.A.C. § 89-02-01-06
means a well-defined land depression or basin that holds water in
normal years throughout the summer. Ponds generally go dry only in
years of below normal runoff and precipitation.
of ponds, sloughs, lakes, or sheetwater" means two or more ponds,
sloughs, lakes, or sheetwater that are hydrologically linked naturally
means shallow water that floods land not normally subject to standing
includes two types:
Seasonal slough: a depression which holds water in normal years
from spring runoff until mid-July. In years of normal runoff and
precipitation, a seasonal slough is usually not tilled but can
be used for hayland or pasture. In low runoff, dry years, these
areas generally are tilled for crop production, but commonly reflood
with frequent or heavy summer or fall rains.
Temporary slough: a shallow depressional area that holds water
or is waterlogged from spring runoff until early June. In years
of normal runoff and precipitation, a temporary slough is usually
tilled for crop production. In years of high runoff or heavy spring
rain, a temporary slough may not dry out until mid-July and generally
would not be tilled but may be used for hayland or pasture. A
temporary slough frequently refloods during heavy summer and fall
when a state permit is not needed
permit is needed if the watershed being drained is less than 80 acres.
Instead, North Dakota applies a common law ( legal concepts that have
been defined by the courts through a series of lawsuits and decisions
) doctrine of reasonable use. The primary consideration in the
reasonable use doctrine is "what impact will the drainage have on downstream
v. Weckerly, 364 N.W.2d 93 (N.D. 1985) -- a North Dakota Supreme
court decision in which the justices describe "reasonable use" as it
applies to surface water drainage.
reasonable-use concept is based upon the principle that although every
landowner has the right to the use and enjoyment of his property, such
use must be reasonable so as not to cause unnecessary injury to others.
drainage of surface waters complies with the reasonable-use rule if:
There is a reasonable necessity for such drainage;
If reasonable care be taken to avoid unnecessary injury to the land
receiving the burden;
If the utility or benefit accruing to the land drained reasonably
outweighs the gravity of the harm resulting to the land receiving
the burden; and
If, where practicable, it is accomplished by reasonably improving
and aiding the normal and natural system of drainage according to
its reasonable carrying capacity, or if, in the absence of a practicable
natural drain, a reasonable and feasible artificial drainage system
the objective of the reasonable-use rule is to determine whether or
not circumstances exist which will justify a court in shifting the loss
from the person harmed ( the downstream landowner ) to the person causing
the harm ( the 'draining' landowner ).
reasonable necessity requirement must be considered in light of the
policy established by the reasonable-use rule to equitably balance the
developing and improving of land with any consequential harm to other
Weckerly conducted no investigation concerning the impact his drainage
would have on downstream landowners and that he otherwise took no significant
action to avoid unnecessary harm to Hanson's property.
The trial court found Weckerly's drainage was the proximate cause of
the damage to Hanson's property.
Weckerly asserts there was no proof that his improved drainage caused
any abnormal runoff and that any high runoff was attributable to unseasonably
high rainfall... Weckerly claims that drainage from other upstream landowners
was responsible for the bulk of the runoff, and consequently the bulk
of the drainage, to Hanson's property. We find Weckerly's argument unconvincing.
Weckerly voluntarily consented to the drainage of water onto his land
by upstream landowners. It was, or should have been, reasonably foreseeable
to Weckerly that the commingling and subsequent drainage of his surface
water with that of upstream landowners could cause harm to Hanson's
The law should not inhibit reasonable development and improvement of
land, but neither should it allow a landowner to expel surface water
without regard to the consequences."
"maintaining a (natural) drainway in its natural state does not require
a drainage permit." See Nilson v. Markestad, 353 N.W.2d 312, 314 (N.D.
v. Ward County Water Resource Dist., 1998 ND 191, 585 N.W.2d 793
when a state permit is needed
general rule is that a permit is required before draining a watershed
of more than 80 acres. The process of obtaining a drainage permit
is collaboratively administered by the state engineer and local water
resource management boards.
state engineer is appointed by the state water commission (N.D.C.C.
§ 61-03-01). Some responsibilities of the state engineer include
as secretary and chief engineer for the (state water) commission
(N.D.C.C. § 61-03-01); and
requested by the county commissioners of any county, cooperate with
the commissioners in the engineering work required to lay out, establish,
and construct any drain to be used by any county or counties for the
purpose of diverting floodwaters, lakes, or watercourses; aid and
assist counties in making preliminary surveys and establishing systems
of drainage (N.D.C.C. § 61-03-08).
Resource Management Board
establishing water resouce management districts, the legislature declared
that the most efficient and economical method of managing, conserving,
protecting, developing, and controlling water and related land resources
is to establish water resource districts encompassing all of the geographic
area of the state, and emphasizing hydrologic boundaries. Source:
site listing ND's water resource management boards -- http://www.swc.state.nd.us/4DLink5/4dcgi/resourceboards/Water%20Links
water resource districts are organized by county, but several are organized
by watershed, e.g., Lower Heart, Willow Creek, and Rush River.
authorities of water resource management board
legal action to compel an entity responsible for maintaining and repairing
a bridge or culvert to remove all dirt, rocks, weeds, brush, shrubbery,
other debris, and any artificial block which decreases the flow of
water through the bridge or culvert. N.D.C.C. § 61-16.1-09(16)
proposals to install, modify, or construct culverts and bridges in
an effort to achieve appropriate size and maximum consistency of road
openings. The department of transportation, railroads, counties, and
townships shall cooperate with the districts in this effort. N.D.C.C.
landowners to retain water on the land to the maximum extent possible,
and carry out the water management policy that upstream landowners
and districts that have altered the hydrologic scheme share with downstream
landowners the responsibility of managing and controlling surface
waters. N.D.C.C. § 61-16.1-10(4)
planning any surface water project, address and consider the downstream
impacts caused by the project. A determination of whether to proceed
with the construction of a project shall be based on the following
Reasonable necessity of the project.
b. Reasonable care to be taken to avoid unnecessary injury by
fully considering all alternatives.
c. Whether the benefit from the project reasonably outweighs the
adverse impacts resulting from the project. N.D.C.C. §
that appropriate easements be obtained when projects will cause an
adverse impact to lands of other landowners. N.D.C.C. § 61-16.1-10(6)
statutes (N.D.C.C.) relating to operations of water resource districts
61-16.1-41.1. Removal or placement of fill.
§ 61-16.1-42. Drains along and across public roads and railroads.
61-16.1-43. Construction of bridges and culverts - Costs.
61-16.1-44. Culvert and pipe arch bids and acceptance.
61-16.1-45. Maintenance of drainage projects.
61-16.1-46. Establishing new drains in location of invalid or abandoned
61-16.1-47. Drain kept open and in repair by water resource board.
61-16.1-48. Assessment of costs of cleaning and repairing drains.
61-16.1-49. Petition for a lateral drain - Bond of petitioners.
61-16.1-50. Drains having a common outlet may be consolidated.
61-16.1-51. Removal of obstructions to drain - Notice and hearing -
Appeal - Injunction - Definition.
frequent question is what role do other local government entities have
in managing drainage.
have construed those statutes as providing water resource boards
with authority to direct townships to install culverts to accommodate
drains established by law, but not in natural watercourses or
to preserve a natural drainway for surface waters. "[T]ownship
boards, and not water resource districts, have supervisory authority
under N.D.C.C. § 24-03-06 to decide whether to install a
culvert beneath a township road to preserve a natural drainway
for surface waters."
water resource districts have been given broad powers to control
waters within their jurisdictions, they have not been given authority
to make the decision to install a culvert under a township road
in a natural watercourse. Rather, water resource districts have
the authority to direct a township to install a culvert to accommodate
Northern v. Benson County Water Resource District, 2000 ND 182,
618 N.W.2d 155 (http://www.court.state.nd.us/_court/opinions/990368.htm)
the Legislature envisioned township and water resource district
boards working together on such decisions. The Legislature has also
made it clear, however, that a board of township supervisors, not
a water resource district, has the authority to install culverts
beneath township roads when necessary to preserve the natural drainage
of surface waters." Excerpt from Ness
v. Ward County Water Resource Dist., 1998 ND 191, 585 N.W.2d 793
Water Commission --
Department of Transportation --
Game and Fish Department --
does one apply for a state drainage permit?
landowner can apply for a drainage permit by completing State of North
Dakota Application to Drain form (SFN 2830). This
Application to Drain can be requested at http://www.swc.state.nd.us/4dlink9/4dcgi/GetSubCategoryRecord/Permits/Drain%20Permits or by calling (701)328-4960. Application forms also may also be obtained from the local county Water Resource Board. As there is a separate application form for tile drains, please specify the type of drainage system you are proposing when requesting an application form.
permit application is submitted to the state engineer. N.D.C.C.
§61-32-03 and N.D.A.C.
state engineer then refers the application to the water resource district
or districts where the watershed is located for the boards's consideration
and approval, but the state engineer may require that applications
proposing drainage of statewide or interdistrict significance be returned
to the state engineer for final approval. N.D.C.C. § 61-32-03
and N.D.A.C. §89-02-01-08.
with statewide or interdistrict significance --
Drainage which would affect property owned by the state or its political
2. Drainage of sloughs, ponds, or lakes having recognized fish and
3. Drainage or partial drainage of a meandered lake.
4. Drainage which would have a substantial effect on another district.
5. Drainage which would convert previously noncontributing areas (based
on twenty-five year event - four percent chance) into permanently
6. For good cause, the state engineer may classify any proposed drainage
as having statewide or interdistrict significance, or the state engineer
may determine that certain proposed drainage is not of statewide or
interdistrict significance." N.D.A.C. § 89-02-01-09
for granting a state permit
permit may not be granted until an investigation discloses that the quantity
of water which will be drained will not flood or adversely affect downstream
lands. The person proposing the drain will pay for the investigation.
§61-32-03 and N.D.A.C.
to be considered
of water to be drained and its impact on the receiving wartercourse
adverse effects on downstream lands
on flooding in the watershed
on waterbodies with recognized fish and wildlife values
on agricultural lands
(flowage?) easements are required
-- The focus of the criteria is on minimizing the adverse impact to downstream
landowners (which is consistent with the common law reasonable use doctrine).
Preservation of wetlands is not the primary statutory criterion in determinng
whether a drainage permit should be granted. Exception -- the project's
impact on waterbodies with recognized fish and wildlife values.
the investigation shows that the proposed drainage will flood or adversely
affect lands of downstream landowners, the water resource board may not
issue a permit until flowage easements are obtained. The flowage easements
must be filed for record in the office of the recorder of the county or
counties in which the lands are situated. N.D.C.C.
obvious purpose of requiring a flowage easement is to protect downstream
landowners and insure that they receive just compensation in the event
of flooding or an adverse impact on their land." Larson
v. Wells County Water Resource Board, 385 N.W.2d 480 (N.D. 1986) (http://www.court.state.nd.us/_court/opinions/11035.htm)
to the general rule of when a state permit is needed
drainage permit is not required for the construction or maintenance of
any existing or prospective drain constructed under the supervision of
a state or federal agency, as determined by the state engineer. N.D.C.C.
§61-32-03; N.D.A.C. § 89-02-01-5(2).
permit is not required to maintain a drain. N.D.A.C.
§89-02-01-05(1). "Maintenance" means removal of silt and vegetation
from a drain. Maintenance does not include deepening or widening a drain.
-- Modifying a drain
permit is required to modify a drain. Modification includes deepening,
widening, or extending a drain. N.D.A.C.
of reviewing a state permit application
receiving an application for a drainage permit:
board will arrange a meeting;
notice of the meeting by publication in newspaper, and by mail to
affected landowners; state game and fish; state department of health;
state, county and township if the drain will cross a public roadway;
state engineer; and others who asked to be notified;
must submit all documents intended to be used at the meeting at least
14 days before the meeting;
board will allow relevant oral and written evidence to be presented
at the meeting;
meeting must be recorded;
must make decision on application within 60 days of receiving the
application is approved, all documents will be transferred to the
state engineer; notice will be sent to all interested person with
the board's rationale; and the board must specify the location and
size of the areas to be drained;
application is denied, board must provide its rationale to the applicant;
this decision can be appealed to the district court. (N.D.A.C. §
reviewing an application of a statewide or interdistrict significance
state engineer will consider the information received from the board,
information the engineer assembles, and information the engineer requests
from other sources (N.D.A.C.
state engineer will provide information about its decision to interested
persons (N.D.A.C. § 89-02-01-09.5)
30 days after the decision, a hearing can be requested (N.D.A.C. §
89-02-01-09.6); hearing procedure is set forth in N.D.A.C. §
§ 89-02-01-09.7 to -09.10
permits can be modified by the government to protect public health,
safety and welfare. (N.D.A.C. § § 89-02-01-09.11)
must begin within two years of receiving the permit (unless extended
for one more year). Construction must proceed with good faith efforts
and satisfactory progress. (N.D.A.C. § § 89-02-01-09.11 and
state engineer may adopt rules for temporary permits for emergency drainage.
emergency ... is a situation which if not addressed immediately will
cause significant damage to persons or property which would not occur
under normal circumstances. An emergency may exist as a result of an
extremely wet cycle. However, damages caused by deliberate acts
of any individual do not constitute an emergency ... unless the damage
can be alleviated without harm to other persons or property. (N.D.A.C.
for an emergency drain must be sent simultaneously to the board and
the state engineer.
will be reviewed for completeness by the board and the state engineer.
and state engineer will make a preliminary determination as to the
existence of an emergency.
soon as possible, a conference call or an onsite meeting among the
board, the state engineer, and other affected parties, as determined
by the state engineer, must be held. The applicant or any other affected
party may make a statement concerning the emergency drainage application
during the conference call or onsite meeting.
conference call or onsite meeting must be electronically recorded.
the call or meeting, but after all parties have been given an opportunity
to present their views, the board shall make a recommendation to the
state engineer whether or not the license should be granted. (N.D.A.C.
the conference call or onsite meeting, the state engineer shall consider
the written information received, the matters discussed during the
conference call or onsite meeting, and the recommendation of the board,
and (based upon this information) decide whether the emergency license
should be granted.
the license is granted, the state engineer may impose any condition
the state engineer deems necessary to protect public or private interests;
a condition may include [requiring a bond].
license must be limited to no more than six months. (N.D.A.C. §
89-02-05.1-07) A license [for an emergency drain] has a duration of
not more than six months unless extended. (N.D.A.C. § 89-02-05.1-03)
license for an emergency drain does not relieve the applicant of liability
for damages resulting from any activity conducted pursuant to the
license. (N.D.A.C. § 89-02-05.1-10)
the drain is to be permanent, the applicant shall submit a drainage
permit application to the state engineer. If the application is submitted
no later than 30 days prior to the date the emergency license expires,
the term of the emergency license is extended until final action on
the drainage permit application has been taken, unless the state engineer
determines that the drain should be closed to prevent damage to public
or private interests. ( N.D.A.C.
§ 89-02-05.1-08 )
an application for a permanent drainage permit is not submitted 30
days prior to the date the emergency license expires, the applicant
shall immediately make preparations to close the drain unless the
applicant has applied in writing for an extension from the state engineer
and that extension has been granted. Preparations must include entering
by other individuals, obtaining any permission necessary from other
landowners, and obtaining any permission or authorizations necessary.
The drain must be closed on or before the license expires. The applicant
shall keep the board and the state engineer informed of the applicant's
progress in closing the drain. (N.D.A.C. § 89-02-05.1-09)
about unauthorized drainage are filed with the local water resource management
a landowner who is adversely impacted can file a complaint about an
unauthorized drain constructed before January 1, 1975, but any person
may file a complaint about an unauthorized drain constructed after
January 1, 1975. (N.D.C.C.
receipt of a complaint, the water resource board shall promptly investigate
and make a determination of the facts (N.D.C.C. § 61-32-07)
board shall make the decision within a reasonable time, not to exceed
120 days, after receiving the complaint. (N.D.C.C. § 61-32-08)
the board fails to investigate and make a determination concerning
the complaint, the person filing the complaint may file it with the
state engineer. (N.D.C.C. § 61-32-08)
after the first complaint, the board's opinion is that the complaint
is frivolous, the board may assess the costs of the frivolous complaint
against the complainant. (N.D.C.C.
the board determines that the drain is unauthorized, the board shall
notify the landowner by registered mail; a copy of the notice must
also be sent to the tenant, if known.
notice must specify the nature and extent of the noncompliance, and
state that if the drain is not closed within a reasonable time (as
the board determines, but not less than 15 days), the board will have
the drain closed and assess the cost of the closing against the property
of the responsible landowner(s).
affected landowner has 15 days from the date the notice is mailed
to demand, in writing, a hearing on the matter. (N.D.C.C. § 61-32-07)
Appeal to district court
person aggrieved by action of the board may appeal the decision of
the board to the district court. A hearing as provided for in
this section is not a prerequisite to an appeal. (N.D.C.C. §
court case that may be of interest -- Graber
v. Logan County Water Resource Board, 1999 ND 168, 598 N.W.2d 846
case involved several appeals and provides an example of the appeals
"the hearings in this case focused mainly on whether the drainage
ditch on Graber's property was dug before or after 1957. The law
in effect at the time a drain is constructed controls, ... and the
... statute ... requiring drainage permits, was not enacted until
Appeal to state engineer
board's decision may be appealed to the state engineer by any aggrieved
party. (N.D.C.C. § 61-32-08)
appeal to the state engineer must be made within 30 days from the
date notice of the board's decision has been received. The appeal
must be made by submitting a written notice to the state engineer
and set forth the reason why the board's decision is erroneous.
appealing party shall also submit copies of the written appeal notice
to the board and to the nonappealing party. (N.D.C.C. § 61-32-08)
receipt of this notice the board, if it has ordered a drain to be
closed, is relieved of its obligation to close the drain.(N.D.C.C.
state engineer shall handle the appeal by conducting an independent
investigation and making an independent determination. The state
engineer may enter property affected by the complaint for the purpose
of investigating the complaint. (N.D.C.C. § 61-32-08)
- The state engineer
shall investigate and make a determination, either by action against
the board, or by personally conducting the investigation and personally
making the determination. N.D.C.C. § 61-32-08
the state engineer determines the drain is illegal, the state engineer
shall take one of three actions:
Notify the landowner by registered mail at the landowner's post-office
address of record;
2. Return the matter to the jurisdiction of the board along
with the investigation report; or
3. Forward the drainage complaint and investigation report to
the state's attorney.
(N.D.C.C. § 61-32-08)
If the state engineer decides to notify the landowner, the notice must
specify the nature and extent of the noncompliance and state that if the
drain is not closed within such reasonable time as the state engineer
shall determine (but not less than thirty days), the state engineer shall
close the drain and assess the cost against the property of the responsible
landowner(s). (N.D.C.C. § 61-32-08)
- Demand hearing
before state engineer
affected landowner may, within 15 days of the date the notice is mailed,
demand, in writing, a hearing on the matter. Upon receipt of the demand,
the state engineer shall set a hearing date within 15 days from the
date the demand is received. (N.D.C.C.
If the state engineer decides to return the matter to the board, a complete
copy of the investigation report shall be forwarded to the board and it
shall include the nature and extent of the noncompliance. Upon having
the matter returned, the board shall carry out the state engineer's decision
(N.D.C.C. § 61-32-08)
If the state engineer decides to forward the drainage complaint to the
state's attorney, a complete copy of the investigation report must also
be forwarded and include the nature and extent of the noncompliance. The
state's attorney shall prosecute the complaint. (N.D C.C. § 61-32-08)
addition to the penalty imposed by the court in the event of conviction
under this statute, the court shall order the drain closed or filled within
such reasonable time period as the court determines, but not less than
30 days. If the drain is not closed within the time prescribed by the
court, the court shall procure the closing of the drain and assess the
cost against the property responsible landowner(s). (N.D.C.C.
authority granted in this section may only be exercised for drainage
constructed after January 1, 1987." N.D.C.C. § 61-32-08
person draining without first securing a permit to do so ... is liable
for all damage sustained by any person caused by the draining, and is
guilty of an infraction. (N.D.C.C. § 61-32-03)
a Section 404 (Federal) Permit Required to Drain a Wetland?
thus far has addressed North Dakota law, but Section 404 of the the
federal Clean Water Act merits a brief discussion.
the answer to the question of whether a section 404 permit was necessary
to drain a wetland has been no, a permit was not mandated. Permits were
needed to discharge a pollutant into water, including discharges of
dredged materials. But as long as you removed material without discharging
materials, the removal would not require a 404 permit. Thus landowners
could dig a ditch to drain a wetland, deposit the removed material away
from the water, and do this without a permit.
is well documented that 404 permits were not required for wetland drainage.
Congress did not respond to suggestions that 404 permits be required
for wetland drainage, so the agencies revised their regulations to include
wetland drainage within the jurisdiction of 404 permits.
Wetland Drainage into the Scope of Section 404
law is clear that a discharge of dredged material into waters of the
United States requires a section 404 permit. Equally clear, the regulations
provided an exception for incidental fallback; that is, incidental fallback
associated with dredging or digging would not be considered a discharge.
Thus, a landowner could construct a ditch to drain a wetland without
a 404 permit as long as the removed material was not deposited in waters
of the United States. Restated, landowners could dig the ditch, pile
the dirt on a dry land, and escape the section 404 permit requirement.
that section 404 did not reach wetland drainage, the Corps and EPA refined
their stance. First, they stated that it regards ditching with equipment
to result in a discharge even if the dirt was deposited on dry land.
This refinement essentially removed the incidental fallback exception
for ditching and drainage.
Corps and EPA then indirectly defined discharge (but this also applies
to filling) as any activity that destroys an area of waters of the United
States (even though the regulation does not state whether the destruction
is due to drainage, fill or both). Likewise, they defined discharge
as any inconsequential degrading of an area of waters of the United
eliminating the incidental fallback exception for ditching and defining
discharge to include any degradation of a wetland (regardless of whether
it was degraded by fill or drainage), the Corps and EPA brought wetland
drainage into the 404 permitting processes without a change in the statutory
protect themselves from a charge of overreaching, the agencies provide
an exception; that is, if the person can establish that the activity
will not degrade an area of waters of the United States, a permit is
not required. Since drainage is intended to convert a wet area to a
dry area, proving that the activity will not degrade an area of waters
of the United States would be difficult; in most cases, impossible.
refined regulations have altered the answer to the question; section
404 permits are now required to drain a wetland. The next question is
whether this regulation will withstand judicial review, or have the
agencies stepped beyond the authority granted to them by Congress.
CFR 323.2 Definitions [for section 404 permits under the federal
Clean Water Act].
. the term discharge of dredged material means any
addition of dredged material ., including redeposit of dredged material
(other than incidental fallback) [into] the waters of the United States.
The term dredged material means material that is
excavated or dredged from waters of the United States.
Incidental fallback is the redeposit of small volumes
of dredged material that is incidental to excavation activity in waters
of the United States when such material falls back to substantially
the same place as the initial removal. Examples of incidental fallback
include soil that is disturbed when dirt is shoveled and the back-spill
that comes off a bucket when such small volume of soil or dirt falls
into substantially the same place from which it was initially removed.
[However, the] Corps and EPA regard the use of mechanized
earth-moving equipment to conduct . ditching . in waters of the United
States as resulting in a discharge of dredged material unless
project-specific evidence shows that the activity results in only
The term discharge of dredged material does not include the following:
Activities that involve only the cutting or removing of vegetation
above the ground (e.g., mowing, rotary cutting, and chainsawing)
where the activity neither substantially disturbs the root system
nor involves mechanized pushing, dragging, or other similar activities
that redeposit excavated soil material.
Section 404 authorization is not required for the following:
Any incidental addition, including redeposit, of dredged material
associated with any activity that does not have or would
not have the effect of destroying or degrading an area of waters
of the United States as defined in paragraphs (d)(5) and (d)(6)
of this section; however, this exception does
not apply to any person preparing to undertake mechanized
. ditching . in a water of the United States, which would result
in a redeposit of dredged material, unless the person demonstrates
to the satisfaction of the Corps, or EPA as appropriate, prior
to commencing the activity involving the discharge, that the activity
would not have the effect of destroying or degrading any area
of waters of the United States, as defined in paragraphs (d)(5)
and (d)(6) of this section. The person proposing to undertake
mechanized . ditching . bears the burden of demonstrating that
such activity would not destroy or degrade any area of waters
of the United States.
For purposes of this section, an activity associated with a discharge
of dredged material destroys an area of waters of the United States
if it alters the area in such a way that it would no longer be a water
of the United States.
For purposes of this section, an activity associated with a discharge
of dredged material degrades an area of waters of the United States
if it has more than a de minimis (i.e., inconsequential) effect on
the area by causing an identifiable individual or cumulative adverse
effect on any aquatic function.
State Administration of Section 404 Permits
Federal law grants states the discretion of administering section 404 permits under the Clean Water Act. North Dakota has chosen to have the North Dakota State Department of Health administer section 404 permits in the state. See N.D.C.C. §61-28-04(12) and N.D.A.C. art. 33-16.
Federal law also requires that states which administer the Clean Water Act impose standards no less than imposed under federal law, but states can impose additional standards if the state deems it necessary to address issues relevant to the state. The EPA decides whether a state's rules are at least equivalent to the federal standards.
way to eliminate a wetland is to fill it, but this also is regulated;
that is, (as mentioned above) section 404 of the federal Clean Water act
prohibits the discharge of material/fill into a waterbody without a permit.
The federal law also allows states to administer this permitting process.
North Dakota has a statute, that has not yet taken affect, which states
person may discharge dredged or fill material into waters of the state
unless that person has a permit from the state engineer. No person may
discharge dredged or fill material in violation of a permit."
potential law can be found in N.D.C.C.
Dakota also has a regulation that requires a permit before filling a
wetland. (N.D.A.C. §89-02-01-03(7))
USDA's Role in Drainage
The U.S. Dept. of Agriculture also has a role in overseeing agricultural drainage. In an effort to discourage (but not prohibit) agricultural producers from draining a wetland (and thereby convert the wetland into agricultural land), federal law declares a farm operator who drains a wetland as ineligible for benefits from the federal government farm program. This law does not prohibit wetland drainage but does impose such a negative economic impact that farm operators feel that the law has the affect of prohibiting drainage. This law is often referred to as "swampbuster".
resources for information about drainage
site with additional information about North Dakota drainage permits http://www.swc.state.nd.us/4DLink9/4dcgi/GetSubCategoryRecord/Permits/Drain%20Permits
Information about drainage laws in neighboring states
- Minnesota: Minnesota Statutes chapter 103E
- Minnesota Statutes, section
103E.005 Subd. 9.-- "drainage authority" means the board or joint county drainage authority having jurisdiction over a drainage system or project
- Minnesota Statutes, section 103E.015 -- before establishing a drainage project, the drainage authority must consider ...
- Minnesota Statutes, section
103E.081 -- unauthorized drain and obstruction of drainage system
- Minnesota Statutes, section 103E.075 -- obstruction of drainage system
- Minnesota Statutes, section
103E.202 -- a petition for a drainage project and a petition for repair
- Minnesota Statutes, section
103E.212 et. seq. -- establish a new drainage system or improve existing system
- South Dakota: S.D.C.L. chap. 46A-10A
- S.D.C.L. §46A-10A-30 -- local government authorized to adopt a permit system for drainage
- S.D.C.L. §46A-10A-20 --
Official controls ... shall embody the basic principle that any rural land which drains onto other rural land has a right to continue such drainage if ...
- S.D.C.L. §46A-10A-31 -- recording existing drainage rights
- S.D.C.L. §46A-10A-67 -- an easement for a drainage right may be acquired by ...
- S.D.C.L. §46A-10A-38 --
an individual landowner may petition a board or commission to change the drainage restrictions on all or any part of his property
- S.D.C.L. §46A-10A-16 -- a board or a county drainage commission may prepare a drainage plan for the county
- S.D.C.L. §46A-10A-82 -- a board may maintain a drainage project
- S.D.C.L. §46A-10A-90 -- any person who intentionally ...
- S.D.C.L. §46A-10A-91 -- any ditch, drain, or watercourse constructed to prevent surface and overflow water from adjacent land from entering it is hereby declared a nuisance ...
August 30, 2010